NOTE: For a short introduction to FOIL, including key terms such as “agency” and “record,” see the New York State Committee on Open Government’s FAQ.
Regular readers know that this site is not a big fan of the way Hudson government operates. However, on occasions when a City leader does try to do the right thing, that ought to be acknowledged without stubborn adherence to personal or partisan allegiances.
In the case of proposed changes to how Hudson handles Freedom of Information Law (FOIL) requests, Mayor Bill Hallenbeck appears in this case to be trying to do the right thing. Hallenbeck has proposed making his office the central point of contact for such requests.
That is not only a legally proper step; it’s also a long-awaited reform. Those of us who have submitted FOILs fairly often over the past decade have agitated repeatedly for this change, and it ought to be welcomed.
Now, some are understandably skeptical of the move. Such skepticism seems based less upon the particulars of FOIL or an understanding of how it plays out in practice, and more upon some general distrust of local government. The City certainly has earned that distrust, and its leaders can hardly be surprised by it. But in this rare case, the skeptics are wrongly conflating leadership concerns with legal ones. Again, this is a change that should be embraced, and here’s why:
Let’s say you wanted to get copies of public records held by the City of Hudson relating to how the 2012 budget was decided upon. 99% of the time, citizens are entitled to such documents 99%. But such records tend to be spread across multiple offices and agencies: spreadsheets in the Treasurer’s office, funding requests from department heads, emails between Aldermen and the Mayor, minutes of meetings with the Police Chief, memoranda from the State, and so on.
As it now stands in Hudson, each “agency” of the government has its own Records Access Officer, an improper and convoluted system instituted by Scalera, in part due to a previous City Clerk not wanting to serve as RAO for the whole City. Even so, most FOIL requests tend to land on the desk of City Clerk Tracy Delaney—who in my experience makes a sincere and prompt effort to respond with any documents in her office’s possession.
Yet technically under Hudson’s FUBAR system, it is not the City Clerk’s job—or anyone else’s—to coordinate responses to FOIL. And she has no particular power to compel Hudson’s many other officials, agencies, boards and departments to respond.
What then ensues under the current system (put in place by former Mayor Rick Scalera, who is no friend of FOIL) is one of two unproductive situations:
If the City Clerk doesn’t have all of the records requested in her own files, either the citizen asking for the information has to badger her to forward the request to other governmental entities, and then nag them to reply; or that citizen has to play a guessing game about where the records might exist, submitting duplicate copies of that request to every other official, agency, board, or department which might have them.
If the request is not honored, the citizen then has to appeal to multiple agencies, and potentially file multiple lawsuits to force compliance.
That’s not how FOIL is intended to work, a fact this site verified in detail with the ever-helpful and responsive Robert (Bob) Freeman of the COOG. The City of Hudson is required to have a central records access officer, for pragmatic reasons of both efficiency—reducing governmental waste—and thoroughness. Citizens shouldn’t have to play guessing games, or badger officials to respond, or blanket multiple agencies with duplicate requests. And government should not waste time and money by fragmenting and segmenting what ought to be a straightforward, efficient process of producing copies of documents for the public.
Under the proposed system, the response all document requests for the City would be coordinated by the Mayor’s office. The Mayor (or, more likely, his assistant) would distribute the request to the relevant officials, departments, agencies, etc. to make sure everyone who might hold relevant information is aware of the request. And the Mayor, unlike the Clerk, would have the clout to compel laggard or recalcitrant people in government to comply.
Now, like pretty much everything which involves human beings, any sound system can be derailed if the wrong people make the wrong decisions. If the Mayor’s office is hostile to public disclosure of documents paid for by the taxpayers, or the City Attorney is overzealous in withholding or redacting documents (as is the case currently with Cheryl Roberts), that authority obviously can be abused. The City is far too slow to respond to FOIL requests, far too eager to deny access, far too overzealous in applying the very narrow reasons allowed for withholding or redacting documents, and particularly unlikely to follow State dictates for electronic access to records.
But the current system already allows and even assists such abuse, by making citizens chase multiple agencies and officers to get at public information. The proposed reform eliminates some of the hassle and red tape, though of course it cannot remove the possibility that officials hostile to public scrutiny may still attempt to confound the law’s intent.
In short, any concerns about the proposed centralization is a political problem, whose solution is at the ballot box. Not reforming the existing methods of handling FOIL only makes it easier for abuses of the law to continue. In addition to making this policy change, the City also would do well to have a change of heart—changing its core assumption from one of “let’s figure out a way to deny this request” to “let’s figure out how to get the people public information in the most efficient efficient way possible.”
By creating a central officer, as required by State law, citizens at least can focus their attention on a single point of contact (and if necessary, a single point of appeal and litigation), rather than having to chase a disparate, moving target.
